Draft of 12/1/10
LEASE AGREEMENT
by and between
[MANTRA./W.P. CAREY ENTITY],
a ______
as LANDLORD
and
______,
a ______corporation,
as TENANT
Premises:Dated as of: ______, 20_____
US_ACTIVE-105029984.2-JMMARGER-503942-7000110/15/18 2:55 PM
1.Demise of Premises
2.Certain Definitions
3.Title and Condition
4.Use of Leased Premises; Quiet Enjoyment
5.Term
6.Basic Rent
7.Additional Rent
8.Net Lease; Non-Terminability
9.Payment of Impositions
10.Compliance with Laws and Easement Agreements, Environmental Matters
11.Liens; Recording
12.Maintenance and Repair
13.Alterations and Improvements
14.Permitted Contests
15.Indemnification
16.Insurance
17.Casualty and Condemnation
18.Termination Events
19.Restoration
20.Procedures Upon Purchase
21.Assignment and Subletting; Prohibition Against Leasehold Financing
22.Events of Default
23.Remedies and Damages upon Default
24.Notices.
25.Estoppel Certificate
26.Surrender
27.No Merger of Title.
28.Books and Records
29.Determination of Value
30.Non-Recourse as to Landlord
31.Financing
32.Subordination, Non-Disturbance and Attornment; Landlord’s Waiver
33.Tax Treatment; Reporting
34.Security Deposit
35.Miscellaneous
36.Post Closing Obligations
EXHIBITS
Exhibit “A”- Premises
Exhibit “B”- Machinery and Equipment
Exhibit “C”- Schedule of Permitted Encumbrances
Exhibit “D”- Rent Schedule
-1-
US_ACTIVE-105029984.2-JMMARGER-503942-7000110/15/18 2:55 PM
LEASE AGREEMENT, made as of this _____ day of ______, 20_____, between [MANTRA./W.P. CAREY ENTITY], a ______(“Landlord”), with an address c/o W.P.Carey &Co.LLC, 50Rockefeller Plaza, 2nd Floor, New York, New York 10020, and ______, a ______corporation (“Tenant”), with an address at ______.
In consideration of the rents and provisions herein stipulated to be paid and performed, Landlord and Tenant hereby covenant and agree as follows:
1.Demise of Premises
. Landlord hereby demises and lets to Tenant, and Tenant hereby takes and leases from Landlord, for the term and upon the provisions hereinafter specified, the following described property (collectively, the “Leased Premises”): (a)the land described in Exhibit“A” attached hereto together with the Appurtenances (collectively, the”Land”); (b)the building[s] containing approximately ______square feet, structures and other improvements now or hereafter constructed on the Land (collectively, the“Improvements”); and (c)the fixtures, machinery, equipment and other property described in Exhibit “B” hereto (collectively, the“Equipment”).
2.Certain Definitions
.
“Acquisition Cost” shall mean $______.
“Additional Rent” shall mean Additional Rent as defined in Paragraph7.
“Adjoining Property” shall mean all sidewalks, driveways, curbs, gores and vault spaces adjoining any of the Leased Premises.
“Affiliate” of any Person shall mean any Person which shall (i)control, (ii)be under the control of,or (iii)be under common control with such Person (the term “control” as used herein shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a corporation or other majority equity and control interest if such Person is not a corporation) and the power to direct or cause the direction of the management or policies of such Person.]
“Alterations” shall mean all changes, additions, improvements or repairs to, all alterations, reconstructions, restorations, renewals, replacements or removals of and all substitutions or replacements for any of the Improvements or Equipment, both interior and exterior, structural and non-structural, and ordinary and extraordinary.
“Appurtenances” shall mean all tenements, hereditaments, easements, rights-of-way, rights, privileges in and to the Land, including (a)easements over other lands granted by any Easement Agreementand (b)any streets, ways, alleys, vaults, gores or strips of land adjoining the Land.
“Asset Transfer” shall mean Asset Transfer as defined in Paragraph21(___).
“Assignment” shall mean any assignment of rents and leases from Landlord to a Lender which (a)encumbers any of the Leased Premisesand (b)secures Landlord's obligation to repay a Loan, as the same may be amended, supplemented or modified from time to time.
“Basic Rent” shall mean Basic Rent as defined in Paragraph6.
“Basic Rent Payment Date” shall mean Basic Rent Payment Date as defined in Paragraph6.
“Casualty” shall mean any damage to or destruction of or which affects the Leased Premises or Adjoining Property or which arises from the Adjoining Property.
“Commencement Date” shall mean Commencement Date as defined in Paragraph5.
“Condemnation” shall mean a Taking and/or a Requisition.
“Condemnation Notice” shall mean notice or knowledge of the institution of or intention to institute any proceeding for Condemnation.
“Costs” of a Person or associated with a specified transaction shall mean all reasonable costs and expenses incurred by such Person or associated with such transaction, including without limitation, attorneys' fees and expenses, court costs, brokerage fees, escrow fees, title insurance premiums, mortgage commitment fees, mortgage points, recording fees and transfer taxes, as the circumstances require.
“CPI” shall mean CPI as defined in Exhibit“D” hereto.
“Default Rate” shall mean the Default Rate as defined in Paragraph7(a)(iv).
“Default Termination Amount” shall mean the Default Termination Amount as defined in Paragraph23(a)(iii).
“Easement Agreement” shall mean any conditions, covenants, restrictions, easements, declarations, licenses and other agreements listed as Permitted Encumbrances or as may hereafter affect the Leased Premises.
“Environmental Law” shall mean (a)whenever enacted or promulgated, any applicable federal, state and local law, statute, ordinance, rule, regulation, license, permit, authorization, approval, consent, court order, judgment, decree, injunction, code, requirement or agreement with any governmental entity, (i)relating to pollution (or the cleanup thereof), or the protection of air, water vapor, surface water, groundwater, drinking water supply, land (including land surface or subsurface), plant, aquatic and animal life from injury caused by a Hazardous Substanceor (ii)concerning exposure to, or the use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, handling, labeling, production, disposal or remediation of Hazardous Substances, Hazardous Conditions or Hazardous Activities, in each case as amended and as now or hereafter in effect,and (b)any common law or equitable doctrine (including, without limitation, injunctive relief and tort doctrines such as negligence, nuisance, trespass and strict liability) that may impose liability or obligations for injuries or damages due to or threatened as a result of the presence of, exposure to, or ingestion of, any Hazardous Substance. The term Environmental Law includes, without limitation, the federal Comprehensive Environmental Response Compensation and Liability Act of1980, the Superfund Amendments and Reauthorization Act, the federal Water Pollution Control Act, the federal Clean Air Act, the federal Clean Water Act, the federal Resources Conservation and Recovery Act of1976 (including the Hazardous and Solid Waste Amendments to RCRA), the federal Solid Waste Disposal Act, the federal Toxic Substance Control Act, the federal Insecticide, Fungicide and Rodenticide Act, the federal Occupational Safety and Health Act of1970, the federal National Environmental Policy Act and the federal Hazardous Materials Transportation Act, each as amended and as now or hereafter in effect and any similar state or local Law.
“Environmental Violation” shall mean (a)any direct or indirect discharge, disposal, spillage, emission, escape, pumping, pouring, injection, leaching, release, seepage, filtration or transporting of any Hazardous Substance at, upon, under, onto or within the Leased Premises, or from the Leased Premises to the environment, in violation of any Environmental Law or in excess of any reportable quantity established under any Environmental Law or which could result in any liability to Landlord, Tenant or Lender, any Federal, state or local government or any other Person for the costs of any removal or remedial action or natural resources damage or for bodily injury or property damage, (b)any deposit, storage, dumping, placement or use of any Hazardous Substance at, upon, under or within the Leased Premises or which extends to any Adjoining Property in violation of any Environmental Law or in excess of any reportable quantity established under any Environmental Law or which could result in any liability to any Federal, state or local government or to any other Person for the costs of any removal or remedial action or natural resources damage or for bodily injury or property damage, (c)the abandonment or discarding of any barrels, containers or other receptacles containing any Hazardous Substances in violation of any Environmental Laws, (d)any activity, occurrence or condition which could result in any liability, cost or expense to Landlord or Lender or any other owner or occupier of the Leased Premises, or which could result in a creation of a lien on the Leased Premises under any Environmental Law,or (e)any violation of or noncompliance with any Environmental Law.
“Equipment” shall mean the Equipment as defined in Paragraph1.
“Event of Default” shall mean an Event of Default as defined in Paragraph22(a).
“Fair Market Value” shall mean the higher of (a)the fair market value of the Leased Premises as of the Relevant Date as if unaffected and unencumbered by this Leaseor (b)the fair market value of the Leased Premises as of the Relevant Date as affected and encumbered by this Lease and assuming that the Term has been extended for all extension periods provided for herein. For all purposes of this Lease, Fair Market Value shall be determined in accordance with the procedure specified in Paragraph29.
“Fair Market Value Date” shall mean the date when the Fair Market Value is determined in accordance with Paragraph29.
“Federal Funds” shall mean federal or other immediately available funds which at the time of payment are legal tender for the payment of public and private debts in the United States of America.
“Guarantor” shall mean ______, a ______.
“Guaranty” shall mean the Guaranty and Suretyship Agreement dated as of the date hereof from Guarantor to Landlord guaranteeing the payment and performance by Tenant of all of Tenant's obligations under the Lease.
“Hazardous Activity” means any activity, process, procedure or undertaking which directly or indirectly (a)procures, generates or creates any Hazardous Substance; (b)causes or results in (or threatens to cause or result in) the release, seepage, spill, leak, flow, discharge or emission of any Hazardous Substance into the environment (including the air, ground water, watercourses or water systems), (c)involves the containment or storage of any Hazardous Substance;or (d)would cause the Leased Premises or any portion thereof to become a hazardous waste treatment, recycling, reclamation, processing, storage or disposal facility within the meaning of any Environmental Law.
“Hazardous Condition” means any condition which would support any claim or liability under any Environmental Law, including the presence of underground storage tanks.
“Hazardous Substance” means (i)any substance, material, product, petroleum, petroleum product, derivative, compound or mixture, mineral (including asbestos), chemical, gas, medical waste, or other pollutant, in each case whether naturally occurring, man-made or the by-product of any process, that is toxic, harmful or hazardous or acutely hazardous to the environment or public health or safetyor (ii)any substance supporting a claim under any Environmental Law, whether or not defined as hazardous as such under any Environmental Law. Hazardous Substances include, without limitation, any toxic or hazardous waste, pollutant, contaminant, industrial waste, petroleum or petroleum-derived substances or waste, radon, radioactive materials, asbestos, asbestos containing materials, microbial matter (including but not limited to mold, mildew and other fungi or bacterial matter which reproduces through the release of spores or the splitting of cells), urea formaldehyde foam insulation, lead and polychlorinated biphenyls.
“Impositions” shall mean the Impositions as defined in Paragraph9(a).
“Improvements” shall mean the Improvements as defined in Paragraph1.
“Indemnitee” shall mean an Indemnitee as defined in Paragraph15.
“Insurance Requirements” shall mean the requirements of all insurance policies required to be maintained in accordance with this Lease.
“Land” shall mean the Land as defined in Paragraph1.
“Law” shall mean any constitution, statute, rule of law, code, ordinance, order, judgment, decree, injunction, rule, regulation, policy, requirement or administrative or judicial determination, even if unforeseen or extraordinary, of every duly constituted governmental authority, court or agency, now or hereafter enacted or in effect.
“Lease” shall mean this Lease Agreement.
“Lease Year” shall mean, with respect to the first Lease Year, the period commencing on Commencement Date and ending at midnight on the last day of the twelfth(12th) full consecutive calendar month following the month in which the Commencement Date occurred, and each succeeding twelve(12) month period during the Term.
“Leased Premises” shall mean the Leased Premises as defined in Paragraph1.
“Legal Requirements” shall mean the requirements of all present and future Laws (including but not limited to Environmental Laws and Laws relating to accessibility to, usability by, and discrimination against, disabled individuals) and all covenants, restrictions and conditions now or hereafter of record which may be applicable to Tenant or to any of the Leased Premises, or to the use, manner of use, occupancy, possession, operation, maintenance, alteration, repair or restoration of any of the Leased Premises, even if compliance therewith necessitates structural changes or improvements or results in interference with the use or enjoyment of any of the Leased Premises or requires Tenant to carry insurance other than as required by this Lease.
“Lender” shall mean any Person (and its respective successors and assigns) which may, on or after the date hereof, make a Loan to Landlord or be the holder of a Note.
“Letter of Credit” shall mean Letter of Credit as defined in Paragraph____.
“Loan” shall mean any loan made by one or more Lenders to Landlord, which loan is secured by a Mortgage and an Assignment and evidenced by a Note.
“Monetary Obligations” shall mean Rent and all other sums payable by Tenant under this Lease to Landlord, to any third party on behalf of Landlord or to any Indemnitee.
“Moody's” shall mean Moody's Investor Services, Inc.
“Mortgage” shall mean any mortgage or deed of trust from Landlord to a Lender which (a)encumbers any of the Leased Premises and (b)secures Landlord's obligation to repay a Loan, as the same may be amended, supplemented or modified.
“Net Award” shall mean (a)the entire award payable to Landlord or Lender by reason of a Condemnation whether pursuant to a judgment or by agreement or otherwise,or (b)the entire proceeds of any insurance required under clauses(i), (ii) (to the extent payable to Landlord or Lender), (iv), (v) or(vi) of Paragraph16(a), as the case may be, less any expenses incurred by Landlord and Lender in collecting such award or proceeds.
“Note” shall mean any promissory note evidencing Landlord's obligation to repay a Loan, as the same may be amended, supplemented or modified.
“Partial Casualty” shall mean any Casualty which does not constitute a Termination Event.
“Partial Condemnation” shall mean any Condemnation which does not constitute a Termination Event.
“Permitted Encumbrances” shall mean those covenants, restrictions, reservations, liens, conditions and easements and other encumbrances, other than any Mortgage or Assignment, listed on Exhibit“C” hereto (but such listing shall not be deemed to revive any such encumbrances that have expired or terminated or are otherwise invalid or unenforceable).
“Person” shall mean an individual, partnership, association, corporation or other entity.
“Prepayment Premium” shall mean any payment required to be made by Landlord to a Lender under a Note or any other document evidencing or securing a Loan (other than payments of principal and/or interest which Landlord is required to make under a Note or a Mortgage) solely by reason of any prepayment or defeasance by Landlord of any principal due under a Note or Mortgage, and which may without limitation take the form of (a)a “make whole” or yield maintenance clause requiring a prepayment premiumor (b)a defeasance payment (such defeasance payment to be an amount equal to the positive difference between (i)the total amount required to defease a Loanand (ii)the outstanding principal balance of the Loan as of the date of such defeasance plus reasonable Costs of Landlord and Lender or (c) “breakage costs” or (d) any combination of clauses (a), (b) and (c) above.
“Present Value” of any amount shall mean such amount discounted by a rate per annum which is the lower of (a)the Prime Rate at the time such present value is determinedor (b)six percent(6%) per annum.
“Prime Rate” shall mean the annual interest rate as published, from time to time, in The Wall Street Journal as the “Prime Rate” in its column entitled “Money Rate”. The Prime Rate may not be the lowest rate of interest charged by any “large U.S. money center commercial banks” and Landlord makes no representations or warranties to that effect. In the event The Wall Street Journal ceases publication or ceases to publish the “Prime Rate” as described above, the Prime Rate shall be the average per annum discount rate (the “Discount Rate”) on ninety-one(91) day bills (“Treasury Bills”) issued from time to time by the United States Treasury at its most recent auction, plus three hundred(300) basis points. If no such 91-day Treasury Bills are then being issued, the Discount Rate shall be the discount rate on Treasury Bills then being issued for the period of time closest to ninety-one(91) days.
“Relevant Amount” shall mean the Termination Amount or the Default Termination Amount, as the case may be.
“Relevant Date” shall mean (a)the date immediately prior to the date on which the applicable Condemnation Notice is received, in the event of a Termination Notice under Paragraph 18 which is occasioned by a Taking, (b)the date immediately prior to the date on which the applicable Casualty occurs, in the event of a Termination Notice under Paragraph18 which is occasioned by a Casualty, (c)the date when Fair Market Value is redetermined, in the event of a redetermination of Fair Market Value pursuant to Paragraph20(c), (d)the date immediately prior to the Event of Default giving rise to the need to determine Fair Market Value in the event Landlord provides Tenant with notice of its intention to require Tenant to make a termination offer under Paragraph23(a)(iii), as applicable.
“Renewal Term” shall mean Renewal Term as defined in Paragraph5.
“Rent” shall mean, collectively, Basic Rent and Additional Rent.
“Requisition” shall mean any temporary requisition or confiscation of the use or occupancy of any of the Leased Premises by any governmental authority, civil or military, whether pursuant to an agreement with such governmental authority in settlement of or under threat of any such requisition or confiscation, or otherwise.
“S&P” shall mean Standard and Poor's Corporation.